Nguyen (Migration)

[2018] AATA 3668

Nguyen (Migration) [2018] AATA 3668 (9 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Vu Thanh Nguyen

VISA APPLICANTS:  Ms Thi Thanh Tuyen Ho
Mr Anh Tuan Le
Mr Anh Khoa Le

CASE NUMBER:  1711551

DIBP REFERENCE(S):  OSF23016/039549

MEMBER:Helena Claringbold

DATE:9 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first-named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211(2) of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations. and

The second-named and third-named visa applicants are to be considered against the relevant secondary criteria for the grant of the visas.

Statement made on 09 August 2018 at 7:33am

CATCHWORDS
MIGRATION– Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Spouse of the sponsor – Money transfers from sponsor – Dine outside family home – Lived together since marriage – Future plans – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 5F
Migration Regulations 1994 (Cth), r 1.15A, Schedule 2 cl 309.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 12 July 2016, Ms Thi Thanh Tuyen Ho, the first-named visa applicant (the visa applicant), applied for the visa.  The application was made on the basis of her spousal relationship with Mr Vu Thanh Nguyen, the sponsor and review applicant. Mr Anh Tuan Le, is the second- named visa applicant and Mr Anh Khoa Le, is the third-named visa applicant.

   
   
   

2. On 15 May 2017, a delegate of the Minister of Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the visa applicant met cl.309.211(2) and cl.309.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As a result the second and third-named visa applicant’s did not meet the criteria for the grant of the visas. This is a review of the delegate’s decision.

3. On 8 August 2018, the sponsor appeared before the Tribunal to give evidence and present arguments. He provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Ms Ho. The review applicant was represented in relation to the review by his registered migration agent.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE 

5. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Immigration and Border Protection’s file and the Tribunal’s file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether the visa applicant is the spouse of the sponsor as defined in s.5F of the Migration Act 1958 (the Act).

   BACKGROUND ON THE EVIDENCE

7. The visa applicant was born in 1970 in Saigon, Vietnam. Her parents and two siblings live in Vietnam.  She has a sibling living in the USA and a siblings living in Australia. In 1998, she married Mr Hung Anh Le. On 8 December 2015, the visa applicant and Mr Le divorced. There are two children from the relationship, who are the secondary visa applicants.

8. The sponsor was born in 1950 in Nam Dinh, Vietnam. His parents are deceased. He has four siblings living in Vietnam. In 1975, he married Ms Thi Quyen Nguyen.  In 1996, the sponsor and Ms Nguyen’s relationship ceased.  In 1999, the sponsor married Ms Thi Hung Pham.  In 2005, the sponsor and Ms Pham divorced. On 10 December 2005, he married Ms Thi Yen Nguyen. He sponsored Ms Nguyen for a partner visa which was granted in 2011. On 14 March 2012, the sponsor and Ms Nguyen divorced. He has a child living in Belgium and another child living in Noumea.

9. In October 2014, the parties met in Vietnam. In April 2016 the parties married. In May 2016, the parties’ marriage was registered.

   Is the visa applicant the spouse of an eligible citizen?

10. The Tribunal is satisfied that the sponsor, at the time of visa application and at the time of decision, was an Australian citizen.

    Are the parties validly married?

11. At the time the visa application was made the visa applicant provided evidence of his marriage to the review applicant. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    Are the parties in a spousal relationship?

12. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d).

13. In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3) of the Regulations, which is extracted in the attachment to this decision.

14. On these aspects the Tribunal has considered the evidence before it and is satisfied the facts of this case are as follows.

    CLAIMS AND FINDINGS

15. About the parties’ financial matters, the parties do not have any joint ownership of assets or joint liabilities. They do not have any legal obligations owed to the other party and do not have any pooling of financial resources in relation to major financial assets.  The parties’ income is derived from the sponsor’s pension payment and the visa applicant income.  The sponsor assists the visa applicant intermittently by sending money for birthdays and special occasions. This money is generally used to assist with the school fees for the second-and- third-named visa applicants. When the sponsor is living in Vietnam with the visa applicant he assists with daily expenses.  The Tribunal accepts the there is some sharing of day-to-day household expenses.  It accepts that the parties live in different countries and have not pooled their financial matters.

16. In the parties’ household, the parties do not have any joint responsibility for the care and support of children. The visa applicant is fully responsible for the care and maintenance of her children. The visa applicant lives in Vietnam and the sponsor lives in Australia. When the sponsor visits the visa applicant he lives with her in her parents’ family home. Their household duties are minimal and in consideration of the visa applicant’s parents, the parties’ dine outside of the family home. The Tribunal accepts that the parties live in separate countries and have not formed their household.

17. Regarding the parties’ social activities, the parties gave evidence that their families and friends know about their spousal relationship. The parties told the Tribunal that when the sponsor is in Vietnam the parties go out for meals and coffee.  They provided evidence that they travelled to Singapore for their honeymoon. The sponsor’s migration agent stated that the parties represent themselves socially in Vietnam as a married couple and their family recognise them to be in a genuine, ongoing marital relationship. Photographic evidence depicts the parties together with the secondary visa applicants at different locations. The Tribunal accepts that the parties travelled and socialised together.

18. Concerning the parties’ commitment, the parties have been married since April 2016. The parties told the Tribunal that they were attracted to each other immediately.  They said that at the time of their meeting the visa applicant had been separated from her previous spouse for more than a year. They stated that they have lived together since their marriage, with the sponsor travelling to Vietnam, once in 2016, twice in 2017 and once in 2018. They provided consistent evidence about their personal and day-to-day circumstances.  They stated that although their income is minimal they will be able to live together and support each other.  Their plans are for the sponsor to be the home person and for the visa applicant to find employment and earn an income. They intend to move to rental accommodation close to the school the second-and-third-named applicant will attend and to live together as a family. The Tribunal accepts that the parties are committed to their relationship.

19. Overall, the Tribunal is satisfied that the visa applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others; that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis. The visa applicant therefore meets the requirements of s.5F of the Act. Given these findings, the Tribunal is satisfied that the parties are in a spousal relationship

20. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision.

21. Therefore the visa applicant meets cl.309.211(2) and cl.309.221 of Schedule 2 to the Regulations.

22. As the visa applicant satisfies the criteria for the grant of the visa, the Tribunal directs that the second-and-third-named visa applicants be considered against the relevant criteria for the grant of the visas.

23. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visas.

    DECISION

24. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first-named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211(2) of Schedule 2 to the Regulations; and

    ·cl.309.221 of Schedule 2 to the Regulations. and

    The second-named and third-named visa applicants are to be considered against the relevant secondary criteria for the grant of the visas.

    Helena Claringbold
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day‑to‑day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long‑term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).